Patel v Allos Therapeutics Inc
Reference: Claim no. HC07C01730
Court: Chancery Division
Judge: Sonia Proudman QC, sitting as a Deputy Judge
Date of judgment: 13 Jun 2008
Summary: Domain names - Trade marks - Registration of domain name with intent to use a protest site - No active use - UDRP - Order to transfer domain name to trade mark owner - Whether breach of registrant's rights under European Convention on Human Rights - Defamation - Malicious falsehood - Harassment - Wrongful threats - s.21, Trade Marks Act 1994
Instructing Solicitors: P in person; Mishcon de Reya for A.
P registered the domain name allostherapeutics.com at which he placed a page stating that the domain name would be used “in time” as “the focal point for people to share their bad experiences” in relation to the services and products of A, a biopharmaceutical company which develops products for the treatment of cancer. A held registered US trade marks for the word ‘Allos’ and a device incorporating ‘Allos Therapeutics, Inc’. A submitted a complaint a complaint in respect of the domain name to the WIPO Arbitration and Mediation Centre under the ICANN Uniform Dispute Resolution Procedure (‘UDRP’). A WIPO panel upheld the complaint and ordered that the domain name be transferred to A. P issued proceedings in the UK, complaining that the transfer was a breach of his rights under the Human Rights Act, and alleging, inter alia, defamation, malicious falsehood, harassment and wrongful threats against A. A applied for the claim to be struck out, alternatively summary judgment.
(1) Whether there had been a breach of P’s rights under Articles 6 or 10 of the European Convention on Human Rights;
(2) If not, whether there was any merit in any of P’s other claims.
Granting the application and striking out P’s claims:
(1) P’s claims under the Human Rights Act were bound to fail. His allegations of bias in the UDRP system, which could be inferred to be an Article 6 argument, were unsubstantiated. His right to freedom of expression under Article 10 was not an unqualified right: it had to be balanced against the rights of others, such as the rights of trade mark owners to enjoy their own rights and property. P had used a domain name constituting A’s trade mark and trading name without any indication that it was a protest site. He was thereby effectively posing as A. His site did not contain or link to any active criticism. This was not a legitimate exercise of P’s rights under Article 10.
(2) There was no merit in P’s other claims. In respect of defamation and malicious falsehood, he had no evidence of the necessary malice. A’s actions were reasonable and therefore not harassment. A had never threatened to bring UK trade mark proceedings.
Although P maintained that his interest in the domain name was to use it as a protest or criticism site, his choice of A’s unadorned trade mark and trading name, and failure to actually make use of the domain name for criticism or protest was fatal to any claim of infringement of his right to freedom of expression: he had not been expressing himself and the transfer of the domain name at issue did not prevent him from expressing himself in future, only at a more appropriate domain name.